MOTHER HAS SOLE PARENTAL RIGHT OVER ILLEGITIMATE CHILD

Dear PAO,

I’m a mother of a 6-year-old illegitimate child. My daughter and I are both living with my parents. I broke
up with my daughter’s father a few months after I gave birth. He and his family are not giving continuous
financial support to my daughter, hence, I call it occasional support. I don’t have a job right now so my
parents are the ones who are providing for us. I am now engaged and going to the U.S. through a
K1/Fiancee visa to get married there in a few months. But I have decided to just let my daughter follow
me in the U.S. after a year or two once everything is already settled, so that I can help her adjust when
the time comes that she’s already there. My parents will take care of her temporarily while I’m away, but
my responsibility as a parent will always be there because I love my daughter more than anyone.

Is there any chance that my daughter’s father can get my child’s custody while I’m in the U.S.? I am being
paranoid sometimes, because recently her father said that he still loves me and he is going to fight for his
rights.

KC

Dear KC,

Since your daughter is illegitimate, by law, parental authority over her person is vested in you. This is
explicitly provided by the Family Code of the Philippines which states:

“Article 176. Illegitimate children shall use the surname, and shall be under the parental authority of
their mother, and shall be entitled to support in conformity with this code. xxx”
Likewise, parental authority is defined as follows:

“Art. 209. Pursuant to the natural right and duty of parents over the person and property of their
unemancipated children, parental authority and responsibility shall include the caring for and rearing
them for civic consciousness and efficiency and the development of their moral, mental and physical
character and well-being.”

As can be gleaned from the aforementioned law, whoever is vested with parental authority over the
person of a child shall take his/her custody. Considering that the law specifically designate you as the
only parent who is vested with parental authority over your illegitimate child, it is only you who has the
right over your child’s custody. This right cannot be taken from you unless there are compelling reasons
to deprive you of such right and obligation as may be determined by the court. Thus, even if you are
absent and cannot personally exercise such right, the father of your daughter cannot assume this right.

Likewise, only those persons mentioned by law may replace you in the exercise of this parental authority
in the event that you cannot perform the same. The Family Code of the Philippines is clear about this:

“Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise
substitute parental authority over the child in the order indicated:

(1) The surviving grandparent, as provided in Art. 214;

(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and
(3) The child’s actual custodian, over twenty-one years of age, unless unfit or disqualified.”

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated
and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

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CAN A FATHER TAKE CUSTODY OF HIS 'ILLEGITIMATE' KIDS?

KAT'S EYE | KATRINA LEGARDA, abs-cbnNEWS.com

Posted at Feb 04 2009 10:50 AM | Updated as of Feb 06 2009 06:46 AM

I got this letter through the mailbox. It was a very long letter, mostly describing what this father would
do for his children. The bottom line is, can a father take custody of his illegitimate children? Specifically,
here is his question:

Ngayon po ang problema naming ay ang custody ng bata, parang may pahapyaw po ang mami ng anak ko
na mag aasawa na sya so ang habol kop o eh sakin mapunta ang bata kung mag aasawa sya? And tama po
bang a once a week lang ako pwede dumalaw sa anak ko every Sunday lang dw.. humihirit ako ako lalu
pa’t birthday ko). Isa pa po karagdagan, meron po siya isa pa anak na lalake na 8 taon gulang pero dir in
po sila kasal ng ama ng bata at may asawa na iba ang ama ng bata.,

Kelan at paano po ako makakuha ng karapatan sa custody ng anak naming,. Sa ngayon po ay wala ata
trabaho ang mami nya kaya and2 lang po siya sa lucena,. Ang hinahabol kop o eh pag nagpakasal sya
magkakaron nab a ako ng karapatan sa custody ng anak ko? Wala nap o ako balak magpakasal or
mkipisan sa ibang babae, tanging anak ko nalang po ang buhay ko ngaun.

Dear Illegitimate Father,

I will call you “illegitimate” as I hate it that the law calls children whose parents are not married,
illegitimate. It is not their fault, so I call their parents illegitimate.

Your children are illegitimate because you are not married to their mother. You do not tell me whether
they carry your name or their mother’s name. The first thing you should do is to go to the civil registrar
and file an affidavit allowing your children the use of your surname, that way, you show you recognize
them as your children and you want them to use your name. When you do something as simple as this,
you can avoid the complications of your ex-partner using her future husband’s name for the children.

The general rule is that children below 7 years old shall remain in the custody of the mother. The law
also states that illegitimate children shall be under the parental authority of the mother. Both rules,
however, do have exceptions.

The Supreme Court has always stated that the welfare of the minors is the controlling consideration on
any issue involving custody of children. What determines the fitness of any parent is [1] the ability to see
to the physical, educational, social and moral welfare of the children, and [2] the ability to give them a
healthy environment as well as physical and financial support taking into consideration the respective
resources and social and moral situations of the parents.

Thus, even a mother may be deprived of the custody of her child who is below seven years of age for
“compelling reasons.” Some examples reflecting an “unsuitable mother” propounded by the Supreme
Court are neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction,
maltreatment of the child, insanity, and affliction with a communicable illness. Also, if a mother is found
to be negligent and exhibited careless failure to perform the duties of parenthood, then she may well be
considered to have abandoned a child. Who hasn’t seen children left in the care of other people? (And,
by the way, this could be an issue, in the future, for our OFW’s….but that is another column altogether.)

In one case, the Supreme Court has even implied that an illegitimate child who is already 7 years old may
choose which parent he wishes to stay with. I am not too sure if the Supreme Court is not in supreme
error on this point ha. So do not depend too much on this one statement.

To be practical, I suggest you sit down with your ex-partner and write up an agreement with respect to
custody and visitation. There are no set rules in the law. The two of you agree on when, how, what, and
how often the children will be with each of you. I keep repeating the mantra that children should not be
used in parental war games. Go to a mediator, someone you both respect, to help you come to an
agreement.

If you insist on your way, will you be ready to pay the costs of a lawyer and litigation?